Delhi District Court
Sh. Subash Patwa vs Smt. Gaytri Devi on 18 November, 2009
MCA-05/09
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL JUDGE-CUM-
RENT CONTROLLER (NORTH EAST DISTRICT) : KARKARDOOMA COURTS:
DELHI.
MCA-05 OF 2009
SH. SUBASH PATWA
S/o Late Shyam Lal
R/o H. No.-T-379, Gali No.-12,
(Earlier known as Gali no.-11)
Near Water Tank, Gautam Puri,
New Seelampur, Delhi. ............ APPELLANT
VERSUS
1. SMT. GAYTRI DEVI
W/o Shri Subash Patwa
2. SH. JAI BHAGWAN
S/o Shri Subash Patwa
3. SHRI YOGESH
S/o Shri Subash Patwa
All R/o h. No.T-379, Gali No.-12
(Earlier known as Gali no.-11)
Near Water Tank, Gautam Puri,
New Seelampur, Delhi.
4.SHRI NASIM KENCHIWALA
R/o C-48, Near Noorani Masjid
Chauhan Bangar, Jafrabad,
Seelampur, Delhi. ............ RESPONDENTS
Date of institution : 02.07.2009
Order reserved on : 10.11.2009
Date of Order : 18.11.2009
ORDER:
1. The appellant has filed the present appeal being aggrieved by the order of Ld. Civil Judge (NE) dated 28.04.2009 vide which the application filed by the :1: MCA-05/09 appellant U/o 39 Rule 1 & 2 r/w Section 151 CPC was dismissed.
2. The facts necessary for disposal of this appeal are that the appellant had filed a suit for declaration/ cancellation and permanent injunction against the respondents stating that respondent no.1 is the wife of the appellant, respondent no.2 and 3 are the sons of the appellant and respondent no.4 is the associate of respondents no.1 to 3. It has been stated that the mother of the appellant was the owner of various properties including suit property bearing No.T-379, Gali No.12 (earlier known as Gali No.11), near Water Tank, Gautam Puri, New Seelampur, Delhi and in 1988 the mother of the appellant during her lifetime arrived at a family partition in respect of her property and the share of the appellant came to Rs.42,000/-. The appellant wanted to get the suit property but the value of the suit property was Rs.75,000/- and as such the appellant paid a balance of Rs.33,000/- to his mother in installments and the appellant got the documents executed from his mother in favour of his wife i.e. respondent no.1 due to love and affection as well as for the tax purpose and to avoid any claim on behalf of any of legal heir of his mother. It has been stated that the appellant had acquired and purchased the suit property for himself and residence of his family members. It has been stated that the documents were in possession of the appellant but when the appellant had gone to Vaishno Devi, the respondents no.1 to 3 have removed the said documents. It has been stated that the appellant has spent huge amount on the suit property from his hard earned money and is residing therein along with respondents no. 1 to 3. It has further been stated that the relations between the appellant and respondents no.1 to 3 were very good but now the respondents no.1 to 3 are under the influence of the brother of the respondent no.1 and their intention has become malafide and they intend to grab the property of the appellant. It has been stated that on 17.02.2009 the respondents no.1 to 3 beaten the appellant and a case under Section 107/150 Cr.
:2:MCA-05/09 P.C. was registered. It has further been stated that the respondents no.1 to 3 threatened the appellant to vacate the suit property and they want to dispose off the same. Finding no other option, appellant filed the suit against them along with the application U/o 39 Rule 1 & 2 r/w Section 151 CPC.
3. The summons of the suit were issued to the respondents who have contested the case by filing their written statements raising objections that the appellant has never discharged his liabilities towards respondents no.1 to 3 and alleged that the appellant is not in possession of the suit property and residing separately. Defendants have denied all the allegations of the plaintiff and have submitted that the plaintiff has failed to perform his matrimonial obligations towards the defendants and he is trying to take the benefit of his own wrongs. It has further been submitted that defendant no.1 has already filed a divorce petition against him which is still pending and plaintiff has no right or claim towards the suit property. It has further been submitted that the plaintiff has no prima facie case on merit and he is not going to suffer any irreparable loss if the injunction is not granted as balance of convenience does not lie in his favour and application is liable to be dismissed.
4. After hearing the parties, Ld. Trial Court dismissed the application for interim injunction vide his orders dated 28.04.09.
5. Aggrieved by the aforesaid order, the appellant has preferred the appeal on the grounds that :-
1)Ld. Trial Court has not appreciated that there was no plea/averment/arguments on behalf of the respondents with regard to the bar contained in the Benami Transaction (Prohibition) Act, 1988. In the entire written statement filed buy the respondents there is no averment that the suit is barred under the provisions of the aforesaid Act
2) The mother of the appellant was the owner of the suit property. However, a :3: MCA-05/09 false pea is taken by the respondent no.1 that she purchased the suit property with the help of her brothers. This plea is false on the face of it as till date the suit property stands in the name of the mother of the appellant in the Revenue Record/MCD and even it is stated in clause 8 of the agreement to sell that the sale deed shall be executed in favour of the respondent no.1 but till date there is no sale deed in respect of the suit property in favour of the respondent no.1.
Even the electricity connection is installed in the name of the appellant and he has been paying the electricity charges.
3) As per the agreement to sell the suit property consists of one room and one store i.e. only ground floor. However, at present the suit property consists of two rooms, verandah and kitchen on the ground floor and three rooms, kitchen, latrine on the first floor and there is no averments in the entire written statement on the part of the respondents with regard to the aforesaid construction/renovation.
4) Ld. Trial Court has not appreciated that agreement to sell dated 25.10.1989 does not transfer/convey any right, title or interest in respect of the suit property upon the respondent no.1 as the said agreement to sell is not registered as required under the provisions of the Registration Act
5) Ld. Trial Court has not appreciated that the suit of the appellant is squarely covered under the provisions of Section 3 Sub section 2 of the Benami Transactions (Prohibition) Act, 1988. It is specifically stated by the appellant that he acquired the suit property in family partition and also paid Rs.33,000/- in installments towards difference of the suit property for his welfare/benefit as well as the respondents no.1 to 3.
6) Ld. Trial Court has wrongly come to the conclusion that it is an admitted case of the parties that the respondent no.1 is the sole and absolute owner of the suit property. It is nowhere admission of the appellant rather it is specifically :4: MCA-05/09 stated that the appellant is the real owner and he got executed documents in favour of his wife i.e. respondent no.1.
7) Ld. Trial Court has not appreciated the judgment cited as well as arguments advanced on behalf of the appellant. Ld. Trial Court wrongly come to the conclusion that the judgment in Jayal Dayal Poddar's case in (1974) 1 SCC 3 is not applicable as the same was passed prior to the enactment of the Benami Transaction Act, 1988 and as such the appellant has no right towards the suit property whether the respondent no.1 purchased the suit property herself or the appellant purchased the same for respondent no.1. Ld. Trial Court has not appreciated that the said judgment has never been overruled and not only this the ratio of said judgment i.e. test has been duly relied upon by the Hon'ble Supreme Court in the case of Valliammal (D) by LRs Vs. Subramaniam & Ors. Reported in the Supreme Appeals Reporter (Civil) page no.769. It has also been stated that Ld. Trial Court has not appreciated the judgment Rajni Rani Gupta Vs. Sudhir Kumar Gupta 1997 (4) DRJ-271 where it is held that the disputed fact of consideration cannot be decided without trial. Ld. Trial Court has wrongly appreciated the judgment reported in AIR 1996 SC 238 titled R. Rajagopal Reddy Vs. Padmini Chandrasekharan as the ratio and issue of said judgment is not applicable in the present case.
8) Ld. Trial Court has wrongly come to the conclusion that if the appellant has no right in the suit property, then he cannot seek any injunction against the true owner of the suit property and in the absence of any right, the appellant has no prima facie case on merits.
9) Ld. Trial Court wrongly come to the conclusion that so far the balance of convenience and irreparable loss are concerned, the appellant has no prima facie case on merits and he is not going to suffer any irreparable loss if the injunction is not granted, then he has no balance of convenience in his favour. Ld. Trial :5: MCA-05/09 Court has not appreciated that if the respondent no.1 succeeds in her illegal design and after the trial of the case the appellant succeeds in his case then the appellant shall suffer an irreparable loss and injury and there will be multiplicity of litigation.
10) Ld. Trial Court has not appreciated that even true owner has no right to dispossess even a trespasser without due process of law ad at least Ld. Trial Court ought to have restrained the respondents from illegally/ forcibly dispossessing the appellant from the suit property.
11) Ld. Trial Court while deciding the interim application has in fact decided the main suit, without trial which is against the law.
A prayer has been made for setting aside the order dated 28.04.09 and allowing the appeal.
6. Notice of the appeal was issued to the respondents. The trial court record was also summoned.
7. I have heard Ld. Counsel for the appellant and Ld. Counsel for the respondents and have perused the record carefully.
8. Counsel for the appellant also filed written submissions along with the copy of some documents i.e. savings pass book issued by the SBI, ATM card and the copy of nomination facility along with the newspaper dated 16.10.2009. During the pendency of the appeal, the appellant also filed 3 photographs to show his possession in the suit property.
9. Counsel for the appellant has argued that the suit is not hit by Benami Transaction (Prohibition) Act and that it is covered under Section 3(2) of the said Act. It has also been argued that the documents on the basis of which the wife of the appellant is claiming her rights are unregistered documents and no title has passed in her favour. It has also been argued that the appellant is in :6: MCA-05/09 settled possession of the premises and the reliance has been placed by the appellant on judgment of Hon'ble Supreme Court in Valliammal Vs. Subramaniam and Others 2004 SAR (Civil) 769 wherein it was held that the burden to establish benami transaction lies on a person who asserts the same. A presumption in law is there that the person who purchased the property is the owner of the same. It has also been argued that Ld. Trial Court has wrongly discarded the judgment of Hon'ble Supreme Court in (1974) 1 SCC 3 which lays down the tests for determination of benami transactions. It has been argued that this judgment has been relied upon by Hon'ble Supreme Court in Valliammal's case. Counsel for the appellant has also relied upon the judgment of the Hon'ble Supreme Court in Ramegowda Vs. M. Varadappa Naidu & Another (2004) 1 SCC 769 in support of his arguments that a person in settled possession of a land cannot be dispossessed without recourse to law. Settled possession gives right to possession such that even the rightful owner may only recover it by taking recourse to law. It has been argued that Ld. Trial Court has wrongly dismissed the application for injunction.
10.Counsel for the respondents, on the other hand, has argued that the appeal filed by the appellant is barred by limitation and there is no application for condonation of delay. It has also been argued that the appellant has taken contradictory stands with regard to the documents of title and the title is in favour of respondent no.1. It has also been argued that respondent did not file any document before the Ld. Trial Court to show that he is in possession of the suit property and has filed the photographs only in the Ld. Appellate Court. It has been argued that the respondents in their WS have categorically stated that the appellant is not in possession of the suit property and he has never residing therein since 16.01.2008. Since 16.01.2008, the appellant has been residing at E-440, Azad Gali, Gali No.-8, Jagjit Nagar, Usmanpur, Delhi-53. The appellant :7: MCA-05/09 tried to forcibly enter into the suit property on 17.02.2009 whereupon a case under Section 107/150 Cr.P.C. was registered.
11. Perusal of record shows that the appellant during the pendency of the application did not file any document to show that he was residing in the suit property after 16.01.2008. The documents filed by the appellant were issued prior to the year 2008. During the course of appeal, the appellant has filed some photographs and bank pass book and ATM card to show that he is in possession of the suit property. However, perusal of the photographs show that these photographs do not establish that appellant is in settled possession of the suit premises. Similarly, the pass book and ATM cards issued by the bank also do not prove his possession in the suit property as from perusal of these documents, it cannot be said that the appellant is in possession of the suit property. It has been argued by the appellant that the ATM card was received by him at the suit property. However, plaintiff has not filed any envelope in which the said ATM card was received to show that it was received by him at the address of the suit property. Hence, in my considered opinion the appellant has not been able to substantiate his plea that he is still in the settled possession of the suit property. Hence, the judgment of Hon'ble Supreme Court in Ramegowda Vs. M. Varadappa Naidu & Another (2004) 1 SCC 769 is not applicable in the present case.
:8:MCA-05/09
12.The contentions for the Counsel for the appellant that he has purchased the suit property in the name of his wife due to love and affection and that she has no right to sell the same is a matter to be decided only after trial. The arguments raised by the counsel for the appellant that respondents had not taken the defence that suit is barred under Benami Transaction (Prohibition) Act but the Court has itself considered it is without any merits. It is the duty of the Court to look into the legal pleas even if the same have not been raised by the parties to the suit.
13.The question who had paid the consideration for purchase of the suit property is again a matter of trial as the appellant has alleged that he had made the payment whereas the receipt filed by the respondent along with other title documents prima facie show that the consideration was paid by respondent no.1. Prima facie the respondent no.1 is the owner of the suit property on the basis of the documents placed by her on record and it is for the appellant to establish by way of evidence that he is the actual owner of the suit property, but prima facie there is no case in favour of the appellant.
14. Perusal of record also shows that the appeal is also barred by limitation. The order was passed by Ld. Trial Court on 28.04.2009 and the present appeal has been filed by the appellant on 01.07.2009. As per the endorsement made by the Copying Agency, application for certified copy was filed on 08.05.2009 and the copies were delivered to the appellant on 20.05.2009. Even if this period is excluded, the appeal has been filed after 20 days of expiry of the period of 30 days for filing the appeal as prescribed in Article 116 of the Schedule under Limitation Act. There is no application for condonation of delay nor any arguments were advanced explaining the delay of 20 days in filing the appeal beyond the period of limitation.
15.Hence, in view of the aforesaid discussion, I do not find any merits in the :9: MCA-05/09 appeal. The same is accordingly dismissed. No orders as to costs. Trial court file be sent back alongwith the copy of this order forthwith. Appeal file be consigned to record room.
Announced in the open Court
Dated : 18th November, 2009 (ANIL KUMAR SISODIA)
SCJ-CUM-RC (NE)
KARKARDOOMA COURTS
DELHI.
: 10 :
MCA-05/09
18.11.2009 :
Present : None.
Vide separate order announced in open court today, the appeal filed by the appellant is dismissed. No orders as to costs.
Trial court file be sent back alongwith the copy of this order forthwith. Appeal file be consigned to record room.
(ANIL KUMAR SISODIA) SCJ-CUM-RC (NE) KARKARDOOMA COURTS DELHI/18.11.2009.
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